The Liberal Market, Inc.

66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All full-time employees in the Employer's retail stores in and around Dayton, Ohio, but excluding meat and self-service meat de- partment employees, office employees, guards, professional employees, assistant managers, managers, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] erally perform the duties of any employees within the unit, being assigned their duties at random, while the "box boys " box and carry out groceries . The majority of the "fill-ins" have regular full-time employment elsewhere and the "box boys" are high school students. Although the Employer utilizes in hiring an "on call" list, there is a high rate of turnover among the personnel in both groups , and 97 percent of the box boys work less than 4 months. Neither group participates in group benefits nor has any expectation of full-time employment. Under these circumstances, we believe that the employment of these part- time employees is not sufficiently regular, but rather is intermittent in character. Ac- cordingly we exclude them from the unit. The Liberal Market, Inc., 90 NLRB No. 126 at 2, not reported in printed volumes of Board Decisions and Orders. THE LIBERAL MARKET, INC. and RETAIL CLERKS UNION 1552, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL, PETITIONER. Case No. 9-RC-2289. October,05,1954 Order Denying Motion and Amending Decision and Direction of Election On September 27, 1954, the Board issued a Decision and Direction of Election in the above-entitled proceeding (110 NLRB 65). Thereafter, the Petitioner submitted a motion by telegram dated Oc- tober 6, 1954, to permit the part-time employees excluded from the unit to vote under challenge and to be allowed to introduce uncon- sidered and previously unavailable evidence as to part-time employ- ees. By telegrams dated October 11, 1954, the Employer and The Liberal Independent Union of Dayton, Ohio,.the Intervenor, advised the Board that they objected to the motion by the Petitioner. The Board having duly considered the motion and having reconsidered its original Decision and Direction of Election, IT IS HEREBY ORDERED that the aforesaid motion be, and it hereby is, denied. IT IS FURTHER ORDERED that the said Decision and Direction of Elec- tion be, and it hereby is, amended by striking therefrom in footnote 2 the words "Under these circumstances, we believe that the employ- ment of these part-time employees is not sufficiently regular, but rather is intermittent in character. Accordingly, we exclude them from the unit."; and substituting therefor the words "Upon these facts, we are of the opinion that the part-time employees who have worked less than 18 weeks for the Employer are not regular part- time employees as that term is used by the Board. We shall there- 110 NLRB No. 132. MERCK AND COMPANY, INC. 67 fore exclude them from the unit." 1; and by amending the description of the appropriate unit to read as follows : All full-time employees in the Employer's retail stores in and around Dayton, Ohio, including part-time employees who have worked during at least 18 separate weeks preceding the Decision and Direction of Election, but excluding part-time employees who have worked for the Employer less than 18 weeks, meat and self-service meat department employees, office employees, guards, professional employees, assistant managers, managers, and all supervisors as defined in the Act. By direction of the Board : OGDEN W. FIELDS, Associate Executive Secretary. 1 Albers Super Markets, Inc., 110 NLRB 474. MERCK AND COMPANY, INC. and JOSEPH KELLY AND DOMINICK DE MIDIO.1 Case No. 2-CA.4822. September 28, 1954 Decision and Order On December 7, 1953, Trial Examiner David London issued his Intermediate Report in the above entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings and conclu- sions of the Trial Examiner only insofar as they are consistent with our decision herein. The Trial Examiner found that the Respondent discharged Kelly because of his activities on behalf of the Congress of Industrial Organizations, herein called the CIO, and not because of the various reasons set forth in its letter of dismissal to him. We disagree. We find that the Respondent discharged Kelly because of his misconduct during a strike against the Respondent, as stated in the letter of dis- missal, and not because of his activities on behalf of the CIO. Accord- 1 Although a charge was filed by De Midio, the Regional Director did not issue a com- plaint in his case. 110 NLRB No. 18.